February 27, 2013

The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.

Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”

The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.

“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”

I look forward to reading the transcript later today. The issue isn't whether there are still some racial inequities in voting procedures, but whether federal law can continue to treat some states differently from others based on a calculation using statistics from 1972.

ADDED: Here's the transcript (PDF). I'll extract some good parts when I can.

The more appropriate question is whether local and state governments in the South are more racist than those in the North and West. To answer that question, it's absurd to look back to only before 1972.

Next up is whether still using race as a factor to draw representative districts is unconstitutional.

Some day blacks will start to wake up and realize that the Democrat party thinks they are totally stupid.

I think most are bright enough to know the Democrat Party has been patronizing them for half a century and they evidently don't care. A steady stream of 'look what we will do for you' will cultivate a sense of dependency on any demographic. Whites are still the large majority of the country and Democrats have convinced them that there are huge segments of society that need State largesee.

I'm a Yankee and old enough to remember from TV and news reels Bull Conner attacking civil rights demonstraters, the three civil rights workers lynched in Mississippi, Virgina closing down its public schools rather than integrate them, George Wallace standing in the door to block integration, etc. But now I live in the South (NC) and I am constantly impressed by the lack of bigotry and discrimination by the whites against the blacks. The South seems to have changed -- a lot -- since the 1950's.

I assume that the standard to be applied in assessing the Voting Rights Act is "rational basis". Although that's a fairly low standard, I would think it should require at least the use of more or less current statistics to show the need for the pre-clearance requirement.

The Godfather, the standard is not "rational basis." It's whether the legislation is a "congruent and proportional" remedy or preventive measure to demonstrated unconsitutional behavior.

In 2006, what evidence did Congress have that the covered jurisdictions were still engaged in some pattern of unconstitutional behavior. Since there really wasn't any, reauthorizing Section 5 can't be congruent and proportional legislation.

Congress aleady prohibits unconstitutional discrimination in Section 2 of the Voting Rights Act. Section 5 goes beyond redressing unconstitutional discrimination. It requires any change in voting procedure to require preclearance by the Attorney General or the district court in D.C.

It's ridiculous that Congress didn't get rid of it. At the very least, Congress will have to look at evidence showing these covered jurisdictions have still continued to discriminate based on current evidence, not evidence from 50 years ago.

The issue isn't whether there are still some racial inequities in voting procedures, but whether federal law can continue to treat some states differently from others based on a calculation using statistics from 1972.

No, for liberal sociopaths, including those who are judges, the issue is, "What will produce more votes for Democrats?"

The key issue was framed by Breyer -- when does the history from 1965, or data from 1972, reach its expiration date in terms of justifying the Section 5 remedy extended in 2006 for another 25 years? It's the same overarching issue in so many of the cases involving governmentally imposed racial entitlements -- O'Connor's statement that affirmative action will no longer be needed in 25 years for example. The Univ of Texas case that will also be decided this term is quite similar.

The same issue divides the two major parties. Dem voters want the entitlements to continue indefinitely; Rep voters can't stand them. Dem politicos will never vote to end racial preferences; the Rep politicos hope they never have to vote on it.

However that may play out in the political area, bot the oral argument and the Court's more recent cases suggest that we've passed the expiration point for at least 5 of the justices.

The real problem here for the liberals is the stupid lazy Congress that did not update testimony when they renewed the legislation. Had they done so (and assuming that there is just a smidgen of evidence to support the position that supervision is still needed) the legislation likely would be upheld.

Or maybe they did not solicit more data because they knew their desired result would not be supported?

It's amazing to me that the liberal justices will carry water for the lazy and incompetent Congress.

As Charles points out, here in SC we now have a female Indian-American governor and a black senator. They do not count for liberals because they are Republicans.

At my polling place, I would say that 80% of the poll workers are black every election. The voters in my precinct are about 50% black and 50% white. Everyone stands in line together and has a nice chat, because generally there is some glitch. People are cordial and polite. Persons of all color can and do vote early or absentee. The poll workers will go out to the cars of any voter who feels physically unable to stand in line or walk into the polling place on election day.

There are no efforts to curb voting by anyone. Any such effort would be widely condemned by whites and blacks. My state representative is black (a democrat). We had a black representative (Republican) in the House of Representatives elected by a Republican district who won a primary over Strom Thurmond's son. I serve on the board of the local water authority, which has four black board members out of 11. They are all outstanding people and widely recognized as such.

There are of course still numerous racists in SC. Some of these racists are black, and some are white. None represent the predominant views and attitudes of members of their own race.

Pffffttt. So I suppose the parents in Southie were supposed to be okay with the forced busing their kids across town to some other district? Per the order of a judge whose kids were conveniently beyond the reach of forced busing?

I would say, from a quick read of the transcript, that Breyer is undecided. I do not agree that all four liberal justices evidenced hostility to the challenge. Seemed to me that Breyer was asking probing questions that were not pointed in one direction or another.

chickelit: Yes, it is almost routine for Justices to cut off counsel in oral argument, especially in high-profile cases where there is a lot of casual public attention, and a very limited time to make points.

mccullough: Good points about the standard of review. I'm not sure I agree with you -- I can think of four Supreme Court Justices who probably won't -- and I am a little uncomfortable with the idea of a broad ruling that throws out all of Section 5.

Not because Section 5 is anything other than laughable. It is a perfectly craptastic disaster of legislation in the 21st century. I thought Chief Justice Roberts got off to a completely fantastic start in demolishing Donald Verilli. And it went downhill from there.

But I'm not enthusiastic about the Supremes acting as a third house of the federal legislature. I find myself hoping for a narrow decsion written by the Chief, but with a lot of input from Justice Scalia.

And again, just because I can say so here on Professor Althouse's blog; the problem here was not caused by the Supreme Court. The problem was an abysmal bit of legislation. Assuredly one of the biggest legislative problems was that the name of the law was "The Voting Rights Act of 1965." Like the "Violence Against Women Act," no seems to be able to vote against it. No matter what is in the law. If someone could attach a rider to the Violence Against Women Act, requiring that the federal government paint every federal building pink, you can be assured that we'd soon see a lot of pink buildings. Because a law entitled, "Violence Against Women Act" will never lose. Because voters are stupid enough to think that a legislator who votes against "Violence Against Women" (note caps) is someone who FAVORS violence against women. (Note lower case.)